A convicted drugs offender has escaped a confiscation order for up to £4.5
million of his assets because legal aid barristers would not take on the
case for the fixed fee of £175.25 a day.
In a dramatic illustration of the impact of new legal aid fees, the man had to
act for himself and won an appeal for the confiscation order to be set aside
because he was not represented by a lawyer.
Eighteen sets of chambers had been approached in London, Leeds and Sheffield –
involving a total of 30 barristers – to see if they would defend the man
identified only as P in the confiscation hearing.
Jansen Versfeld, the solicitor who conducted the fruitless search for a
barrister, said: “Because of the very low rate of pay for these hearings,
£175.25 per day, and the amount of work and complexity involved, with no
payment for preparation, none could undertake to do it.”
Mr Versfeld, who is with Morgan Rose solicitors, said that there were 6,586
pages of documents and a total of 4,548 transactions that would require
arranging into a manageable form by experienced senior counsel for an
estimated six-week hearing.
Judge David Mole, QC, sitting at Harrow Crown Court, accepted that the man
could not have a fair trial as legal aid “does not provide sufficient
funding to pay for the necessary representation”. At the same time, the law
prevented him from using his own assets to pay for lawyers, the judge
said.“The consequence was that no barrister of remotely appropriate
experience and ability had been prepared to take on the case from any of the
. . . chambers that the appellant’s solicitors had contacted.”
The judge had suggested that junior counsel might take the case but Mr
Versfeld pointed out that it would run contrary to the Bar’s code of conduct
for a barrister to accept instructions in a case for which he or she lacked
experience. An anonymity order protecting the man’s identity was made in the
interests of his personal safety.
The man’s original lawyers at his trial – where he was convicted of two
drug-related offences – were unable (through no fault of his) to continue
with the confiscation hearing.
The offender, who received a custodial sentence from which he was released
after serving nine months, paid his original lawyers privately. But when it
came to the confiscation hearing he was unable to use his own assets because
they were frozen, so he had to apply for legal aid.
The Crown Prosecution Service alleged that P had benefited from his criminal
lifestyle to the sum of £4.5 million and in the first instance were seeking
to confiscate assets worth £1.5 million.
Mr Versfeld said: “Normally, the same lawyers would continue with the
confiscation hearing and would just accept the lower fees because they had
already done the main trial. But just to do the confiscation hearing on its
own is not viable.” The case highlighted the inadequacy of the funding
regulations post October 2005 under the so-called graduated fees scheme (a
fixed scale of fees), said Mr Versfeld.
It also exposed the “draconian” provisions of the Proceeds of Crime Act 2002
under which offenders convicted of a drugs-related offence faced having
assets seized that could in theory be counted as gained from a “criminal
lifestyle”.
“So although this defendant was convicted of offences only involving a few
hundred pounds’ worth of cannabis, he found himself at risk of losing £4.5
million worth of assets – with the burden on him to prove that they were not
ill-gotten gains. On top of that, he was prohibited from using those assets
for his own defence.”
The judge agreed with P’s case and halted the proceedings as an abuse of
process. He said: “If P has to rely upon legal aid, there is no prospect of
him getting properly qualified counsel.” Mr Versfeld said: “I would expect
to see a lot more cases like this, where the issues are complex but funding
is insufficient to obtain appropriately experienced counsel.”
Tony McDaid, practice director of No5 Chambers, a set of barristers based in
Birmingham, London and Bristol, also gave warning that more cases were
likely to be turned away by barristers.
He said: “I have just had to turn away a similar case as I calculate that on
the hours of preparation my counsel would have been paid £6.50 per hour. The
only option in such cases is for the defendant then to seek to represent
himself.”
The Bar operates a “cab rank” principle which means that barristers are meant
to take the next case that comes along, if they are free and competent to do
it. But they can turn down a case if the rate of pay is not fair and
reasonable for the work involved.
The price of justice
— Most barristers are self-employed and are paid per case depending on
seniority and specialities
— The highest-paid barristers work in commercial law. Criminal and
family law barristers earn the least
— The criminal barrister Michael Mansfield, QC, earned £575 per hour
representing Mohamed Al Fayed at the Diana, Princess of Wales, inquests. He
has also represented the family of the murdered teenager Stephen Lawrence
— The top 9 per cent of criminal lawyers earn more than £100,000 per
year. The average salary is £62,000
— Top Queen’s Counsel can make more than £1 million per year
— Jim Sturman, QC, who represented Harold Shipman’s family at the
inquest of the GP, became the first criminal barrister to be paid £1 million
from legal aid in one year, earning £1,180,000 in 2004-05
— After recent reforms, criminal barristers carrying out legal aid work
now earn significantly less. New rates of pay for a QC start on £91 per hour
and £79 for a leading junior
Couldn'tt a barrister have been appointed to act for him - all sorts of really violent criminals seem to receive this valuable (and costly) representation when they wish to apply for reductions in sentence, etc.
Puzzled, London
Mrs L H Lewy, London,
They should run an online (sealed) bidding contest for legal aid work, e.g. Lawyers submit bids for cases (ie how much they will charge per day/hour) for advertised cases. The adverts would show type of case, location/court, date of hearing.
The lawyers have been milking legal aid for too long!
R, London,
I approached 105 solicitors to take a case and not one would take it on.
It was all laid out for them, bundles done, but not one had the spine to go against Local Authority.
A point that the public should be aware of.
Lady Portia, London, UK
One day pays the £175. But it reading over 6,000 pages of bank statements and asking the Defendant where every payment came from is gonna take a couple of weeks unpaid. As chambers rent is £100 per week, that means taking this case makes a LOSS!
Richard, London,
Tough on crime. Tough on the causes of crime.
Yet another broken promise for Blair, Brown and co.
Ian Jones, Reading, UK
I'm amused rather than irritated at the smug comments from those who deride Pete from Wolverhampton. Bashing the low paid - big and clever, eh? Such arrogance is why lawyers will never gain any public sympathy for their pay 'plight'.
Paul, Leeds,
One reaps the seeds one sows.
I cannot help but tip my cap to those arristers who ferused the case on financial grounds. As an aspiring barrister i feel they are helping to secure my financial security after years at law school. once again thank you. maybe, JUST maybe the government will pay up.
s wallis, nottingham, england
To those that moan about their low wages, should lawyers take pay cuts (to minimum wage levels) when teachers strike, which i agree with, as did miners. Should the government cut legal aid to the point where a junior barrister doesn't earn enough to have to pay back student loans. Think on MOANERS.
s wallis, nottingham, england
Again may I add to all those asking questions regarding the "legal stance" regarding legal aid, please do not post mindless comments, one earns wages because of their ability, if you earn less than £200.00 per week do what i did and re-skill don't moan, thats why this country is going to the dogs.
s wallis, nottingham, england
I was pleased when the national minimum wage was introduced, but didn't realise that the principle only applied to employers not to the Government: £175 per day (less expenses) for a case lasting a few days and nothing for one month's preparation. What minister or MP would dream of working for that?
T A Jones, Rugeley, UK
Of course the £175.25 per day is not "wages". After allowing say 2 weeks for prep and account for expenses, the pre-tax rate works out at about £90 per day. That equates to a salary of £20000 per annum. Hardly a bean feast. The £79 per hour only applies to 5% of cases and is a bit misleading.
max, Birmingham,
How absolutely absurd. I feel totally justified in my decision to sell up and quit the country I was born in and move elsewhere How can any govt allow this to happen. Oh I know, it makes enough from speed cameras to worry about real criminals now!
David, Paynes Bay, Barbados
It is bad enough that the government that runs the country is basically full of lawyers, now the lawyers also run the law!
Game, Set and Match.......
John Brown, Perth, Australia
What an embarrasing moment for one of the best legal systems in the world. As a law student, i would agree with the judge but disagree with the amount payable to conduct the case. Barristers have worked very hard to get to their positions and should be adequatly awarded for their legal services.
Amar Alyas, Manchester, Lancashire
A QC earns for criminal work on legal aid £90 an hour. His or her chambers' fees (ie cost of premises, clerks, hardware etc) will take almost half of that. Then, he or she has to pay their own travel to distant courts, their full NI contribution and pension costs. Another brainless move by the govnt
Martyn, London,
All this for a little weed. The stuff should be legal. It would free up the justice system for more important pursuits.
Paul Bahre, Granby, CT, USA
I remember a barrister defending the system -- he said there's a 'cab rank rule'. But presumably not for all passengers.
Sebastian, Manchester, UK
Ever feel like your the only sane person left in Britain? Justice should not be about the ability to pay, and it shouldn't be about if you can afford 'suitably experienced' legal representation. This guy should have to fit the bill of representation himself in such a situation. Pure ridiculousness
duncan, Wokingham,
Why not mention that these figures for the wealth of barristers are before any business expenses at all? Starting criminal barristers often do not earn enough to actually have a real income.
Time to stop blaming the bar and look at what this government has done to Legal Aid. It's criminal.
richard, horley,
Lawyers can squeal as much as they like, but I've yet to meet a poor one. No one forced them to enter this line of work and no one is forcing them to remain in it, or do they not fancy life in the real world? The greed of lawyers has resulted in the public losing their respect for the profession.
David, London,
Remember our old joke - "American justice, the best that money can buy"? Silly, wasn't it?
Another example from the 'brain dead' supposedly running this country for the past decade.
Anyone for a spot of 'croquet', while we rest our minds?
MikeM, St. Albans, England
I don't understand. If he has 4.5 million in assets why was he entitled to legal aid in the first place? Surely he should have had enough money to pay for his own lawyer.
Nicole, London,
Why should the right to a fair trial include the right to an expensive Barrister?
Whilst the pragmatic aspect of the legal system cannot be ignored, we are effectively putting a price on justice. The man should stand trial with whatever representation is available.
Joseph Mulhall, London,
I am amazed that the bleeding-heart liberals who have posted comments below are even reading the Times - surely The Guardian would be a more comfortable read for you lot? On what basis should barristers not be able to choose their work? They are self-employed, not government employees!
Sophie, Guildford,
If he made the money illegally, then whether he has legal reprentation or not should not matter. The judge should be allowed to rule.
Hamad Lone, London, England
Could the Barrister not be paid out of the confiscated 4.5million if the case is lost or if the case is won be allowed to write off any losses made against their tax?
Like jurors Barriesters should be appointed and not be given a choice on the matter.
Michael, Worthing,
Assets must be frozen to prevent them disappearing. One thinks that the state could have relases some monies for his defence on the proviso that if he won they would refund him and if he lost,the money goes to legal aid for these awkward cases.
Natalie El-Barrawi, Retford, Notts
Don't blame the system. If justice has not been done blame the greed of the barristers who think more of the money in their pockets than ensuring justice is done.
John, London, UK
".Barristers deserve better. They are the brightest of the bunch... we need to Tripple the legal aid budget" Liam Ryan, london
...and if you're a barrister, you need to learn how to spell!
Homer, London,
Another outstanding example of New Labour introducing legislation without fuly considering or understanding the implications.
Ian, Lisboa,
£175 per day is for each day in court and is gross. Rent, clerks fees and other self-employed expenses would easily eat up £75. There are 260 week days per year, less 8 bank holidays (courts closed) so max annual income would be £25,200 before tax! And no pay for many hours trial prep. Millionaire?
Roger, Birmingham, UK
Seems to be lots of bitterness abot the pay.
Pete from Wolves, maybe if you had worked as hard as those guys you wouldn't earn less than £200 a week.
You would earn more in McD's...maybe you need to get a better job. Hard with no qualifications eh?
Glad i worked hard in school now.
Damian, Leamington Spa,
"We are paid what we are worth, Pete. Perhaps the lawyers didn't bunk off school as much as you did. Min wage is the pay you earn for your wasted opportunities"
How contrite. I never skipped school, and have a degree, but my job as a journalist for an international agency pays only £15k a year.
Dave, Leeds,
Goodbye UK, thank you to the wonderful Times Online for keeping me happy that I am 12,000 miles away from the madness still prevailing, what went wrong and when? The legal system is MAD, only lawyers/solicitors/barristers win in this (and maybe the odd drug dealer)?
Chester from Hull, Wellington, NZ
Every on here is piping on about how Mr. P is guilty etc as far as I was aware in the UK your innocent until proven guilty.... Why should his legal fees be taken from his assets if they are frozen?
Harry, Gravesend, UK
Barrister can refuse case if fee not fair - these fees were not. Law is an ass - allow for lawyers to be paid properly from the defendant's assets - where's the harm in that?
James Montgomery, NYC, USA
Barristers deserve better.
They are the brightest of the bunch and those who secure a pupilage could easily be on £64k + in the City. If pay does not drastically increase we may as well bring in show trials.
Take note Conservatives, big vote winner.
we need to Tripple the legal aid budget
Liam Ryan, london,
Am I wrong, but I was under the impression that a barrister con not refuse a case offered to him by a solicitor, because of money.
victor arram, westcliff,
Sarah Jones, London -
CRIMINAL CASES - you get legal aid.
CIVIL ACTION - you have to prove a very low income and assets to get legal aid and bankrupts (again frozen assets) get no legal aid - hardly fair if they've been bankrupted wrongly.
What a wonderful Labour country!
Isobel, Ashford, UK
Simple: send the file to the Inland Revenue.
Let them assess him for income tax, penalties for non disclosure, etc, and at least some element of justice might be done.
MarkS, Leeds,
Pete, wolverhampton: "The real criminals are the legal profession-I'd like to get £ 175 a day rather than it being my usual weekly wage". We are paid what we are worth, Pete. Perhaps the lawyers didn't bunk off school as much as you did. Min wage is the pay you earn for your wasted opportunities.
sapphie, Slough,
Every aspect of life this government touches is tainted. When will they do something right, like call an election and lose it?
Albert Hall, kettering,
With many people I know working as criminal barristers,I know first-hand just how difficult it is to make a living at the criminal bar.The notion of fat cat lawyers for this group of professionals is so far from the truth, it's unreal.Block contracting is eroding the quality of legal representation.
Elizabeth, London,
There's an obvious solution, which is to allow the legal fees to be paid out of the frozen assets. However, the real scandal here is the plot by the Legal Services Board and the CPS to increase conviction rates by denying ordinary people legal representation.
Frank Upton, Solihull,
No barrister lawyers in goal? Surely a consideration of their sentence could be made if they are 'offered' this case?
I doubt the fee is less than the hourly rate for gaol work.
Mr P may not have earned all 4.5 million from illegal smokes, but
he made something and that should be forfeited.
irp, Tokyo,
That the law is an ass most of us have known for a long time, but that it is quite so stupid has only become apparent from this and some similar cases!
Ken, Orpington, Kent, U.K.
What in the name of God going on in the UK? I really do not think that it is enough that you will soon be rid of this pestilence that is called New Labour. You need also to wreak revenge for the irreversible damage that this band of villains has done to a once great country.
Billy Barnett, HK,
"out of which has to come chambers and other expenses, then tax etc. Hardly a salary is it?"
I'm a contractor (company won't take on real employees), get 11.25 an hour. I have to pay double tax, full NI, and don't get paid holidays or sick leave.
My heart bleeds for all those poor lawyers. Not.
M. R., Stockport,
The more I read about our legal community, the more I despise them. This country needs a radical shake-up to ensure that priority is given to the law-abiding, tax payer rather than the community's dregs.
We could start by reintroducing capital punishment. That would reduce the prison population.
David, Poole,
The great Labour master plan is to destroy private legal practice and replace it with civil servants - sorry - public defenders/prosecutors. Who needs professional, proven to be legally successful, hard working, independent, committed, non 9-5 lawyers working FOR THEM anyway?
charles, London,
How many more cases are there going to be of Labour legislation that back fires on itself. Laws introduced over the last 10 years without thought are consistently having undesired effects but what can you expect from MP's made up primarily from second rate ex-lawyers.
Mike, Alicante, Spain
Gordron Brown, you arrogantly said that you will "listen and learn" to the people's concerns.
I hope this article makes it to your intray today.
Adrian, aldershot, ENGLAND
Assets should only be frozen in cases where there is a risk of flight, clearly not the case where someone is in gaol, or if the assets might be disposed of. It seems the Crown has shot itself in the foot not allowing the defendant access to funds in order to defend himself.
Larry, Southampton, England
"6586 pages of documentation, 4568 transactions." Many of these will be £48 groceries, £84 petrol, £59 on-line purchases etc." Why would such low-level personal expenditure require silky senior counsel skills? 3rd Sector staff/vols could process these transactions @ £6.50 ph and still make a profit.
Bob, St Albans, UK
To Pete Wolverhampton:
The huge amount of pre-trial work reduces that rate to the £6.50 per hour quoted. If you'd spent many years in education to qualify as a Barrister and then secured a place in Chambers (around 1 in 4 who qualify) would you want to earn a pittance above minimum wage?
Nigel, Newcastle, Tyne & Wear
The man was only convicted of selling cannabis worth a few hundred pounds and yet the police/CPS want to confiscate £4.5 million
I for one am glad it failed although I wonder how many other cases there are were people have been convicted of minor offences and had there life savings stripped away.
Jon, Liverpool,
"The average salary is £62,000"
Is that supposed to refer to gross fee income, out of which has to come chambers and other expenses, then tax etc. Hardly a salary is it?
Jude, Morecambe,
Simple enough to amend the law to enable the accused`s own assets to pay for such a proceeding? But then again, with this government involved, probably not so simple. Perhaps making the accused pay his own legal costs will be a breach of his human rights.
rod, london,
I'm not surprised no QC would take the case - even a leading Junior would balk at the derisory Legal Aid remuneration - in P's case "reading in" alone would have required many hours of work - 500GBP an hour would not be enough!
Chris Robinson, Hong Kong, Hong Kong
Has the concept of a fair trial under New Labour disappeared completely? The justice system is as defunct as the rest of our public services. Not only are the bureaucratic requirements oppressive for practitioners, but the legal aid rates of pay might just about afford you a taxi to the court.
Kevin, York, England
It appears that the man was eligible for legal aid because the law itself prohibited him from using his own assets to pay for legal council. This just demonstrates that those who make our countries laws are not fit for purpose. Even in business, processes are reviewed for every possible outcome.
peterj, Malvern,
Read the article, Chris: the man's assets had been frozen meaning he had no funds to pay a lawyer. The article also suggests that his assets were probably not all the proceeds of crime, so this is all the more absurd.
Manolo, Toledo, Spain
It looks as though the CPS has shot itself in the foot. TSol can't recoup the cost of preparing the prosecution - which is done and ready to roll. On these grounds alone one could challenge the freezing order.
Meanwhile lawyers with the LSC receive salary , nothing to second-guess : no work.
Dion Per Sona, Cardiff, UK,
If you took the time to read the article, it states that his assets were frozen which is why he had to resort to legal aid.
Doh.
James Wiseman, London NW3, UK
Clearly neither Sarah nor Chris have read the article properly. Whilst the criminal was "worth" £4.5m, the *process* had frozen ALL of those assets, meaning that the criminal "P" hadn't got enough money to pay his lawyers! Hence being able (forced, even) to apply for legal aid.
Ade, Cadiz, Spain
This is a true reflection on the stupidity of this government and the sheer lunacy which will end up costing millions more in the long run. Justice is the backbone of a free society and whilst we critisize regimes like Mugabe with one hand the government abuses it's own position with the other.
Neil Walker, Nottingham, England
What a ludicrous fee! As a former self employed Consultant, this would have amounted to £5,250 for 6 weeks work, or less than £40,000 pa if you take any holidays. Out of that the Barrister would have to pay rent at Chambers, a fee to Clerks etc. Oh, not forgetting having to read the case for free!
Frank Keegan, Alderley Edge,
This case may appear to be shocking, however is not detailed enough to make a judgement about the issue. i.e. the 4.5 million.
The case highlights a big problem with the legal aid system, however David Mole, QC's judgement was appropiate under the circumstances.
Dave, London , England
Is this just another example of the laws of unintended consequences, to which this government seems to be wedded? They are clearly to blame for framing a piece a law which has such an obvious consequence (obvious that is to anyone but these fools) Will no one rid us of them ?
David Nammory, Liverpool,
This government has squandered billions in Afghanistan, to in part rid our streets of drugs, and bring justice to an 'uncivilised land', whilst it's parsimonious domestic policy results in the opposite – Ah the irony in life!
The two faux pas however share one common malady: New Labour myopia
Ahmadur Rahman, London,
This government has squandered billions in Afghanistan, to in part rid our streets of drugs, and bring justice to an 'uncivilised land', whilst its parsimonious domestic policy results in the opposite – Ah the irony in life!
The two faux pas however share one common malady: New Labour myopia.
Ahmadur Rahman, London, UK
If he has the assets, it is a bankable proposition to pay counsel a proper fee. £175 a day is less than a decorator would charge! Yet again Brown and his mob demonstrate their incompetence.
Williiam, london, Uk
So they freeze his assets - assets they want to confiscate anyway - and then find he cannot pay his lawyers.
When an Executor needs to pay IHT before obtaining Probate all estate funds are frozen. Executors do not get funds advanced from the taxpayer to pay HMRC - why do convicted drug-dealers ?
TomTom, Leeds, England
As a rule of conduct, the barrister is meant to serve a cab rank policy and take each case as it comes, at 175 an day with so much paperwoirk it is not a small case. The barrister may have rejected it through moral reasons that he knew the defendent personally etc but this person should have receive
anne, goslar , germany
This gov't, which has enacted more bad criminal legislation and removed more liberties and safeguards from its citizens than any other has put justice beyond the reach of the citizen, by paring down the legal aid system to the point of extinction. Labour has brought in a police state.
Michael Greet, Bristol, UK
What is wrong with England the" Law" is just out of control. Is it labour that has brought about this chaotic
state, we know the so called law Lords are over turning every thing to do with trying to get rid of illegals
and terrorists and now we have ordinary Judges
getting in on the act.
Barry Holmes, Christchurch, New Zealand
While I find his crime repulsive the question about why he was allow legal aid is answered in the article, his assets were frozen, therefore he could not use it. I reiterate I find drugs repulsive, but in this country a fair trial is more important, and he should not use ilegal money for it.
T. Hamilton, Chatham,
He got legal aid because the government frooze his money, therefore he had to have legal aid. Thats the law Labour passed in 2002.
mohsen, malaga, spain
The real criminals are the legal profession-I'd like to get £ 175 a day rather than it being my usual weekly wage
pete, wolverhampton,
Why does someone worth £4.5m qualiy for legal aid?
Why did Harold Shipman, a well-paid GP who pilfered from his patients, qualify for legal aid?
I have known women on very small incomes who could not get injunctions against violent husbands as they were deemed to be too well off.
Sarah Jones, London, UK
Why should this wealthy criminal be eligible for legal aid ? The courts and law and order are breaking down, which means we are going to become less wealthy, and less safe. A civil society is worth more than a few GDP points.
Chris, Ely, England